Fair use allows for the unauthorized copying of a copyrighted work in limited circumstances. Historically, examples of fair use have included copying for the purposes of criticism, comment, parody, news reporting, teaching, scholarship, or research. Now the application of the fair use defense applies far beyond this. Two court decisions in 2015 illustrate the expanding reach of the fair use defense.

One of the key factors in determining fair use is whether the use is transformative. A work is transformative if it adds something new, with a further purpose or different character than the original work, giving it new expression, meaning, or message.

The U.S. Court of Appeals for the Second Circuit, in a case referred to as the “Google Books” case, found that Google’s search and snippet features in its library were highly transformative and, thus, fair use. This was despite Google having scanned without permission over 20 million books for the library. The Second Circuit decided that the features were transformative because the search features allowed users to search for specific terms in the digitized books and to review snippets from those books, serving purposes different from reading the original books themselves.

In a case referred to as the “Dancing Baby” case, the U.S. Court of Appeals for the Ninth Circuit addressed the application of the fair use defense to the Digital Millennium Copyright Act (the DMCA). It found that a copyright holder must assess whether a potentially infringing use on a third party website was fair use before sending a request to “takedown” (or remove) the material. Universal had sent a DMCA takedown request for a mom’s posting on YouTube of her baby son dancing to Prince’s song, “Let’s Go Crazy.” The court held that Universal had to first make a good faith consideration as to whether the use of the song was fair use before sending the takedown notification. The Ninth Circuit declined to re-hear the appeal, but amended its opinion, taking out language that a content owner’s fair use analysis need not be “searching or intensive” and that it could use automated programs to conduct such an analysis. In the wake of the initial decision, YouTube announced that it will pay the legal fees of certain users faced with frivolous DMCA takedown notices where there clearly was fair use.

Takeaways

Marketers, agencies, and others who create materials inspired by another’s copyrighted work should be aware of the distinction between fair use and infringing use and should recognize that the determination of whether a use constitutes fair use is a fact-intensive and context-specific exercise.

Content owners need to assess the availability of the fair use defense before sending DMCA takedown notifications.

Before sending a DMCA takedown request, a written record of the assessment of fair use should be recorded and retained so that if a fair use challenge is later made, there is a clear record that fair use was considered prior to the sending of the notification.